from the here-comes-everyone,-entertainment-law-edition dept

In the April 2009 issue of Entertainment Law & Finance, three partners in the Intellectual Property Group at Kilpatrick Stockton LLP take a look at the role that "amateur musicologists" have played thus far in the copyright battle stemming from Satriani's lawsuit against Coldplay for copyright infringement back in December. I'll include relevant quotes from the article, since you need to register for a free account in order to read the PDF.

What makes this case unique is the lively debate that it has prompted, which will likely impact how this action and similar infringement cases will be prosecuted and defended going forward. Within days of the suit's initiation, the popular Web site YouTube was inundated with postings in which fans freely offered their opinions concerning the merits of Satriani's claims (or absence there-of). Some of these submissions were supported by surprisingly detailed analyses of the works.

We saw this in the comments on Techdirt, as there was a lively debate and people were quick to mention a variety of other songs with the same melody. The article also mentions a Canadian guitar teacher who uploaded somevideos to YouTube with a detailed analysis.

The parties should take note of the prior art works that have surfaced as part of the public debate. Such works could prove to be helpful to Coldplay in defending against Satriani's claims, as they could reflect that Satriani himself may have "unconsciously copied" from an earlier work.

This was written before Cat Stevens claimed that Coldplay was actually infringing his song, the "Foreigner Suite," which was one of the similar sounding tunes people had noticed online. Anyone monitoring the online discussion about the copyright battle would have had this on their radar. Also, it was Cat Stevens' son who brought the song to his attention, my guess would be as a result of discussion about the similarities online.

Or [prior art] may simply reflect these oft-quoted words from the Second Circuit: "It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of palgiarism." Darrell v. Joe Morris Music Corp., 113 F.2d 80, 80 (2d Cir. 1940)

This quote reinforces the idea that there are only so many ways to combine chords.

What makes the Internet commentary regarding the two songs particularly interesting is that much of it replicates the type of expert analysis that both sides will likely use if the case goes forward. In music copyright infringement cases, it is rare for parties to rely solely on bare assertions of copying or independent creation. Instead, they frequently engage "musicology" experts to undertake detailed analyses of every element of alleged similarity between the two works and conclude whether all or portions of one work were copied from the other. The parties and their experts in [this case] should consider the analyses of the "amateur musicologists" that have weighed in via the Internet and other media, if for no other reason than they may be informative of how a jury might ultimately view the case...

While Satriani v. Martin may not go to trial for a variety of reasons, it is clear that user-generated content sites like YouTube have the potential to alter the way music cases -- and other types of copyright case -- are developed. Because advances in technology allow the public to participate in real-time infringement debate, future parties would do well to monitor this "chatter" as it could uncover evidence and theories that may be helpful to the case of the copyright owner, the alleged infringer or both.

The online discussion is largely what has made this case so unique. There have been successful copyright infringement lawsuits over melodies in the past (most notably Bright Tunes v. Harrisongs), but never has the public been able to participate so much in the debate. I think it's likely that Cat Stevens' son wouldn't have known of the similarity between the melodies if not for all of the other people who noticed and highlighted it online. If the case does go to trial, the internet commentary may influence the strategy on both sides and serve as a preview of the arguments. If it doesn't go to trial, the online discussion may influence any sort of negotiation as a means of assessing opinion on the merits of the infringement claim.

The melodies are undoubtedly similar, but the legal question is whether or not Coldplay copied from Satriani. It's not just Coldplay's word against Satriani's, but music fans and "amateur musicologists" are gathering evidence and providing theories which are having a noticeable impact on the proceedings.